Delhi District Court
Another vs . Medical Chemical And Pharma (P) Ltd. on 3 October, 2011
IN THE COURT OF SH. MUKESH KUMAR
ACJcumARC, NORTH WEST ROHINI COURT: DELHI
CC No. 07/1/09. Date of Institution : 08.08.2003.
U/S 138 N.I. Act. Date of Arguments: 10.03.2011.
JUDGMENT
a). Serial no. of the case : 07/1/09.
b). Name of complainant : Sh. Kapil Sahani
S/o Sh. Suresh Kumar Sahani
R/o 210, Dharam Kunj Apartment
Sector9, Rohini, Delhi85.
c). Name of accused : Sh. Santok Singh
R/o A1/16A, Paschim Vihar
Double Storey
New Delhi63.
Also at:
A1, Avantika
Rohini, Sector11. Delhi85.
d). The offence alleged : U/s 138 Negotiable Instrument Act, 1881
e). The plea of accused : Pleaded not guilty.
f). Final Order : Acquitted.
g). Date of such order : 03.10.2011.
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Brief statement of reasons for such decisions :
1. In the present complaint case accused Amar Sethi was put on trial for the accusation of offence punishable u/s.138 N.I. Act. Complainant has stated in the complainant that he is residing at the above mentioned address with his family members and whereas the accused was having friendly relations with the family of the complainant. The accused was running under financial crisis on account of certain up heaves in his business and as the accused was having friendly elations with the complainant and keeping into account good acquaintance and family relations, the accused requested to the complainant some where in the April, 02 for a friendly loan of Rs 5 Lacs for a period of 89 months. Thus on various requests and persuasions for and on behalf of the accused, the complainant gave him a friendly loan of Rs 6 Lacs and as it was a friendly loan, the complainant did not charge any interest from the accused persons and the accused handed over a post dt cheque bearing no. 30593 dt 20.04.03 drawn on Syndicate Bank, Punjabi Bagh, Delhi for a sum of Rs 5 Lacs. It is further submitted after the expiry of nine months i.e. in December, 02 when the accused did not pay the friendly loan amount, the complainant requested to clear the same, on which he avoided the issue on one or other pretext. On various requests and CC NO. 1407/1/09. 2/11 persuasions for and on behalf of complainant, the accused directed the complainant to deposit the above said cheque with his banker and after prior assurance from the accused, the complainant presented the above said cheque with his banker i.e. Oriental Bank of Commerce, Branch Sector8, Rohini, Delhi85 and the same was dishonored on 19.06.09 vide returning memo dt 20.06.03 due to insufficiency of funds. It is further stated that complainant immediately approached the accused on telephone and requested him to clear his liability but the accused categorically refused to make any payment and the complainant was compelled to file the present case.
2. On service of the summons the accused appeared and notice of accusation was framed u/s 251 CrPC on 27.01.07 to which the accused pleaded not guilty and claimed trial.
3. Complainant examined himself by way of affidavit as CW1 stating moreover the same facts as alleged in the complaint and in support of his testimony he relied upon documents of which cheque no. 305931 as Ex. CW1/1, copy of deposit slip as Ex. CW1/2, return memo as Ex. CW1/3, information memo as Ex. CW1/4, legal notice as Ex. CW1/5, postal receipts as Ex. CW1/5A to Ex. CW1/5C, the return envelope as Ex. CW1/6 and complainant was cross examined at length by the counsel for the accused. CC NO. 1407/1/09. 3/11
No other witness was examined by the complainant and CE was closed.
4. Thereafter statement u/s 313 Cr.P.C of the accused was recorded on 27.04.09 wherein accused showed his willingness to lead his defence evidence.
5. In Defence Evidence, accused has examined himself as DW1 and he was cross examined at length. DW2 Joginder Singh was also examined and cross examined to prove his case and thereafter DE was closed and the matter was fixed for final arguments.
6. I have heard the arguments on behalf of both the parties and have given my thoughtful consideration to the submissions advanced on behalf of complainant and on behalf of the accused. I have also gone through the written submissions filed on behalf of parties.
7. Before proceeding further it is important to discuss the scope of Section 138 Negotiable Instrument Act:
Section 138 Negotiable Instrument Act lays down : CC NO. 1407/1/09. 4/11
Provisions of the consequence of dishonour of the cheque and the limitation period prescribed for taking the steps accordingly "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole on in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offense and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
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Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation For the purpose of this section, "debt CC NO. 1407/1/09. 6/11 or other liability" means a legally enforceable debt or other liability."
8. Section 139 of Negotiable Instrument Act also need to be mentioned here: Section 139 of the N.I. Act further lays down the law regarding to the presumption which is stated to be in favour of the complainant. Section 139 N.I.Act further reads as under :
Presumption in favour of holder : It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
In one of the landmark Judgment of Hon'ble High Court of India in case M.M.T.C. Ltd and another Vs. Medical Chemical and Pharma (P) Ltd. (2002) (i) Supreme Court Cases 234 has stated that complainant need not alleged existing of a subsisting CC NO. 1407/1/09. 7/11 of debt or liability against which the cheque was issued. The burden of proving nonexistence of any debt or liability is on the accused which is to be discharged at the trial".
9. Section 139 N.I. Act, as stated above, draws a presumption that the holder of the cheque receives the cheque for discharge of a debt or liability and till contrary is proved if nothing contrary as shown by the drawee /accused then presumption goes in favour of the complainant and against the accused. It is further stated by Hon'ble Supreme Court of India that the liability u/sec. 139 N.I Act, accused has to show that dishonor of cheque was not due to insufficient of funds and there was valid cause including absence of dept or liability for the stop payment/any other reasons mentioned in the Bank Return Memo.
In another case 'Hiten P. Dalal Vs. Bratindranth Banerjee (2001) 6 Supreme Court Cases 16' Hon'ble Supreme Court of India has laid down the similar law as stated in the above cited authorities and has stated that Section 138, 139 and 118 N.I. Act are to be rebutted specifically by the accused and it is obligatory on the CC NO. 1407/1/09. 8/11 Court to presume the liability the drawer of the amount in every case where the such presumption is established .
10. Thus Section 138 read with section 139 NIA lays down the consequences of dishonour of cheque and further lays down certain principles on the basis of which the liability of the drawer are to be ascertained. These essential principles are:
1.) The cheque was issued by the drawer.
2.) The cheque was issued for a valid consideration.
3.) The cheque was presented and was dishonoured.
4.) Legal notice was sent within time period as prescribed.
5.) No payment was paid after receipt of the notice.
11. In his cross examination, complainant has admitted that cheque in question i.e. Ex. PW1/1 was handed over to him only for security. In his evidence, it is deposed by the accused that he has never issued any cheque to the complainant and was only having business transactions with the father of the complainant. He further stated that he has never issued the cheque to the complainant. It is submitted by the counsel for the accused that the provisions of CC NO. 1407/1/09. 9/11 section 138 of NI Act are not applicable against him and has placed on record the judgment titled as 'M/s Collage Culture & Ors. VS Apparel Export Promotion Council & Anr' cited in 2008 (1) DCR 126 where in it was held in para 20 & 24 as under:
"Para 20 A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in present but payable in future. Under second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contigent event."
"Para 24 It would be relevant to note that the statue does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due but payment postponed at a future date would attract Section 138 of the Negotiable Instruments Act, 1881. But the cheque issued not for an existing due, but issued by way of a security, would not attract Section 138 of the Negotiable Instruments Act 1881, for it has not been issued for a debt which has come into in existence."
The complainant was required to prove his case that the cheque CC NO. 1407/1/09. 10/11 was issued against the liability and in entire evidence complainant has failed to prove that the cheque in question was issued against the liability. In these circumstances, this court is of the opinion that the complainant has failed to prove his case beyond reasonable doubt. Hence, accused is acquitted. Surety bonds stands cancelled and surety stands discharged. Original documents if any, be returned to the parties subject to filing of copy thereof after cancellation of endorsement thereon. File be consigned to Record Room.
Announced in the open court (MUKESH KUMAR)
on 03.10.2011. ACJCUMARC NORTHWEST
This judgment contains 7 pages and ROHINI COURTS ,DELHI
each page has been signed by me.
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